What Does a Trump Presidency Mean for the Environment?

Environmental Law

On November 8, 2016, Donald J. Trump was elected the next President of the United States. We can expect many changes as the country transitions from the Obama administration to a Trump administration. One of several issues that will receive a lot of attention is the environment. What will Trump’s administration mean for the environment as well as for those businesses that are impacted by environmental and energy regulation?

It is still early and not possible to know what Mr. Trump’s administration will do with regard to environmental protection and energy regulation; however, Mr. Trump made certain promises during his campaign and he has started to outline his plans. He also has named the person who will lead the EPA transition team on climate. As a result, we have an idea of what his environmental policy may look like.

Mr. Trump has plans to reorganize domestic energy and environmental priorities, and to withdraw the United States from the Paris climate accord. On his website, greatagain.gov, Mr. Trump states that it is his plan to open onshore and offshore leasing on federal lands and waters to encourage the production of fossil fuel resources in an effort to make America energy independent. The Trump administration says it “will end the war on coal,” review all anti-coal regulations, and reopen shuttered coal mines. Mr. Trump wants to reduce the role of the Environmental Protection Agency to an advisory one and scrap the Climate Action Plan and the Clean Power Plan, President Obama’s proposed plan to move utilities toward lower carbon emissions. It is Mr. Trump’s view, as stated on his website, that these steps will lead to “more jobs, more revenues, more wealth, higher wages, and lower energy prices.”

Mr. Trump has selected Myron Ebell to run the EPA working group on his transition team. Mr. Ebell is the director of energy and environmental policy at Competitive Enterprise Institute, and is known around the world as one of America’s most prominent climate-change skeptics. This appointment is a significant indication of the direction we can expect Mr. Trump’s environmental and energy policies to take.

Although it could take a while for Mr. Trump to withdraw the United States officially from the Paris accord, in the meantime we can expect him to not enforce its guidelines and to repeal climate change regulation put in place under President Obama’s administration. With a Republican Congress, Mr. Trump will not face a lot of resistance, but pulling out would have implications for Mr. Trump’s dealings with foreign leaders. On the other hand, fossil fuel industry advocates will see much opportunity in this policy change, such as opening more public land and offshore areas to oil and gas drilling, and building more energy infrastructure.

The coal industry is particularly buoyed by Mr. Trump’s promises to rescind the coal mining lease moratorium and repeal anti-coal regulations. It is the coal sector’s view that it has suffered lower demand and job loss as a direct result of the impact of regulations directed at its industry. Nevertheless, it is unlikely that coal is going to make a comeback despite Mr. Trump’s vows. Environmental considerations aside, it remains to be seen whether the steps Mr. Trump takes, if any, to increase the use of coal will make economic sense. Coal is a fuel that is being phased out because of its pollution — among fossil fuels, it is the dirtiest — and because of the falling prices of renewables such as solar and wind. Investors are choosing solar and wind because of economics.

During his campaign, Mr. Trump showed less than enthusiastic interest in wind and solar energy and voiced his intention to end federal spending on renewable energy in order to support a fossil fuel energy policy. However, if the United States begins to fall behind economically because the renewables energy market is being ignored here, the Trump administration may take a different look at this issue. The first and best innovators in the world are going to be the ones who get the advantage in the developing energy market.

One of Mr. Trump’s promises is fairly certain to be carried out — his plan to eliminate EPA’s Clean Power Plan. The Clean Power Plan, based on Section 111(d) of the Clean Air Act, was proposed in June 2014 to put limits on greenhouse gas emissions from existing fossil fuel-fired power plants. It was finalized in August 2015. The rule considers the states’ ability to shift power generation to cleaner sources. The Clean Power Plan is under review by the U.S. Court of Appeals, due to a suit brought by 27 states and a few corporate interests, over whether EPA properly exercised its authority under the Clean Air Act. The case is expected to go to the Supreme Court next year. Legal commentators have suggested that Mr. Trump has several options for addressing the Clean Power Plan. He could not defend it in court, rescind the rule, or ask Congress for support in blocking it.

The actions Mr. Trump has promised to take with regard to the environment are in keeping with his plans to reduce federal regulation, and to move away from a strong central government. Mr. Trump’s anti-regulation position is based on a view that the economy will be able to grow if business is free of the control of an over-powerful federal government. It is important to keep in mind that this position anticipates that the states will retain their authority to regulate and we may see states take up the slack. As the federal environmental programs are eliminated or cut back, states are likely to take steps to control their environmental affairs in a way that makes sense to them. This will mean a lack of uniformity across the country, and neighboring and down-wind states could end up with complaints about pollution impacts from states with less stringent environmental regulation. Significantly for businesses on Long Island and in the rest of New York, New York State has a robust environmental conservation and protection program administered by the New York State Department of Environmental Conservation. We can expect that New York State will continue its environmental regulatory program during Mr. Trump’s presidency.

Many questions remain about what Mr. Trump’s environmental policy will look like, but one thing is fairly certain: we are likely to see a rollback of efforts by President Obama to combat climate change, including the repealing of regulations, a push for increased fossil fuel development, and a limiting of the work of energy regulators. In the face of this expectation, we will see the states take on a more significant role in environmental protection and energy regulation.

 

Posted by Miriam Villani

EPA Proposes Changes to Construction General Permit Regulating Construction Activity Stormwater Discharges

Environmental Law

The United States Environmental Protection Agency (EPA) has recently proposed to reissue the Construction General Permit (CGP). The CGP, a general permit issued under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES), authorizes certain stormwater discharges from construction activities subject to NPDES regulations. The reissued CGP will replace EPA’s 2012 version which will expire on February 16, 2017.

The proposed CGP contains several minor, new, or modified requirements including, among others, the following changes to the expiring 2012 permit:

  • The proposed CGP requires that authorized non-stormwater discharges of external building washdown waters not contain hazardous substances, such as paint or caulk containing polychlorinated biphenyl (PCBs).
  • CGP holders must include contact information for the EPA in the public notices that are to be posted at a safe, publicly-accessible location in close proximity to the construction site.
  • The proposed CGP changes the requirement for temporary stabilization for stockpiles or land-clearing debris piles from “where practicable” to require cover or appropriate temporary stabilization for all inactive piles that will be unused for 14 or more days.
  • The proposed CGP requires waste-container lids to be kept closed when not in use, or, for waste containers that do not have lids and could leak, permittees are required to provide cover or a similarly effective means to minimize the risk of discharge of pollutants.
  • In connection with demolition of structures with at least 10,000 square feet of floor space that were built or renovated prior to January 1, 1980, the proposed CGP requires permittees to implement pollution prevention controls to minimize the discharge of pollutants in stormwater and to prevent the discharge of pollutants from spilled or leaked materials from construction activities to minimize the exposure of building materials containing PCB to precipitation and stormwater.

In addition to these proposed changes to the CGP, EPA is also soliciting comments on other potential changes to the CGP that are being considering, relating to, among other things: (i) requirements for a group Stormwater Pollution Prevention Plan (SWPPP) for sites with multiple operators; (ii) modifications of the site stabilization deadlines; (iii) increasing site inspection frequency; and (iv) requiring operators to make the SWPPP available to the public.

Construction operators located in geographic areas where the EPA is the NPDES permitting authority will be subject to the regulations of the reissued CGP that will take effect in 2017. In states where the EPA is not the NPDES permitting authority, such as New York, the state-issued permit requirements must meet the minimum requirements of the CGP. Thus, state-permitting authorities, in practice, will often follow EPA and its changes to the CGP.

For more information on regulation of stormwater discharges from construction activities, please contact Miriam Villani or Joseph Bjarnson.

 

Posted by Joseph Bjarnson